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Constitutional or not, it’s probably not appropriate to imprison someone for years without a hearing due to bureaucratic backlogs, a split panel of the 9th U.S. Circuit Court of Appeals has ruled. Tijani v. Willis, No. 05 C.D.O.S. 10466. That was the single aspect of a contentious immigration case that two judges could agree on. In a one-page opinion, Senior Judge John Noonan Jr. struck down the federal government’s standard for holding immigrants pending deportation hearings. Senior Judge A. Wallace Tashima agreed, but on different grounds. Judge Consuelo Callahan dissented. “It’s an extremely important decision,” said Marc Van Der Hout, a partner at San Francisco’s Van Der Hout, Brigagliano & Nightingale who represents aliens in immigration cases. “Detention for months and years on end of aliens who haven’t been found to be removable from the country is a serious, increasing problem, especially here in California.” Noonan wrote that Monsuru Tijani-a resident alien from Nigeria facing deportation hearings for a 1999 credit-card crime-must be granted a bail hearing or released from custody as he awaits deportation proceedings. Tijani, Noonan wrote, “has been deprived of his liberty for a period of over two years and four months” due to bureaucratic delays. The authority to hold immigrants convicted of crimes, Noonan wrote, was granted by Congress in a law creating an expedited removal process. “Two years and four months of process is not expeditious,” Noonan wrote. While “it is constitutionally doubtful that Congress may authorize imprisonment of this duration,” Noonan elected to avoid the constitutional question of whether such detention violates due process. Noonan remanded Tijani’s case to the U.S. District Court for the Southern District of California, and ordered that Tijani be granted a bail hearing within 60 days or be released pending his deportation proceedings. Tashima joined Noonan, but in his concurring opinion he said that the court should address the constitutionality of the Bureau of Immigration Appeals (BIA) ruling that allows aliens to be held indefinitely without a hearing to determine whether release would be risky. To escape prehearing detention, the BIA standard requires that a detainee convince an immigration judge that the government’s charges are unlikely to stick. That rule, Tashima wrote, “is not just unconstitutional, it is egregiously so. The standard not only places the burden on the defendant to prove that he should not be physically detained, it makes that burden all but insurmountable.” In her six-page dissent, Callahan argued that mandatory detention is not necessarily unconstitutional, but agreed with Noonan that there was no need to address that issue. Tijani was represented by Steven Hirsch, a partner at San Francisco’s Keker & Van Nest who is working pro bono, and by Lucas Guttentag, the head of the American Civil Liberties Union Immigrants’ Rights Project. Indefinite detention, Guttentag said, has become increasingly important in recent years as increased immigration enforcement has led to ever bigger backlogs. “It’s a big issue around the country about how much detention is permissible,” Guttentag said. Hirsch agreed, and said that he’s not sure whether to expect the government to ask for review of the opinion from either an en banc 9th Circuit panel or the U.S. Supreme Court. “It’s so unusually structured that analyzing it is going to take a little while,” Hirsch said. Callahan would agree. “The troubling nature of this case,” she wrote in her dissent, “is underscored by the fact that each member of our panel has written separately.”

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